The Lizza List: Ten Quotes on the Fate of Health Care

How did the final day of oral arguments at the Supreme Court about the Affordable Care Act go? Depends on your perspective. Whether or not the Court ultimately strikes down the individual mandate that’s key to the law, its supporters had to be dispirited as they heard the justices wrestle with the question of severability—that is, whether or not the full law has to go if the mandate does. Below, the ten quotes that are key to understanding the day’s proceedings, taken from the transcript released by the Court. (For more, see The New Yorker’sfull coverage of this week’s arguments.)

Justice Sonia Sotomayor: “We are not in the habit of doing the legislative findings. What we do know is that for those States that found prices increasing, that they found various solutions to that. In one instance, and we might or may not say that it’s unconstitutional, Massachusetts passed the mandatory coverage provision. But others adjusted some of the other provisions. Why shouldn’t we let Congress do that, if in fact, the economists prove, some of the economists prove right, that prices will spiral? What’s wrong with leaving it to—in the hands of the people who should be fixing this, not us?”

Justice Antonin Scalia: “All right. The consequence of your proposition, would Congress have enacted it without this provision, okay that’s the consequence. That would mean that if we struck down nothing in this legislation but the—what do you call it, the corn husker kickback, okay, we find that to violate the constitutional proscription of venality, okay? (Laughter.) When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the corn husker kickback is bad. That can’t be right.” (N.B.: The so-called Cornhusker kickback was repealed by Congress only days after the Affordable Care Act was signed into law.)

Justice Ruth Bader Ginsburg: “There are so many things in this Act that are unquestionably okay. I think you would concede that reauthorizing what is the Indian Healthcare Improvement Act changes to long benefits, why make Congress redo those? I mean it’s a question of whether we say everything you do is no good, now start from scratch, or to say, yes, there are many things in here that have nothing to do frankly with the affordable healthcare and there are some that we think it’s better to let Congress to decide whether it wants them in or out. So why should we say it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.”

Paul Clement, the lawyer arguing against the A.C.A.: “At—at a certain point, I just think that, you know, the better answer might be to say, we’ve struck the heart of this Act, let’s just give Congress a clean slate. If it’s so easy to have that other big volume get reenacted, they can do it in a couple of days; it won’t be a big deal. If it’s not, because it’s very— (Laughter.) Well, but—I mean, you can laugh at me if you want, but the point is, I’d rather suspect that it won’t be easy. Because I rather suspect that if you actually dug into that, there’d be something that was quite controversial in there and it couldn’t be passed quickly.”

Chief Justice John Roberts: “This was a piece of legislation which, there was—had to be a concerted effort to gather enough votes so that it could be passed. And I suspect with a lot of these miscellaneous provisions that Justice Breyer was talking about, that was the price of the vote. Put in the Indian health care provision and I will vote for the other 2700 pages. Put in the black lung provision, and I’ll go along with it. That’s why all—many of these provisions I think were put in, not because they were unobjectionable. So presumably what Congress would have done is they wouldn’t have been able to put together, cobble together, the votes to get it through.”

Justice Samuel Alito: “May I ask you about the argument that is made in the economists’ amicus brief? They say that the insurance reforms impose 10-year costs of roughly $700 billion on the insurance industry, and that these costs are supposed to be offset by about 350 billion in new revenue from the individual mandate and 350 billion from the Medicaid expansion. Now if the 350 billion—maybe you will disagree with the numbers, that they are fundamentally wrong; but assuming they are in the ballpark, if the 350 million from the individual mandate were to be lost, what would happen to the insurance industry, which would now be in the—in the hole for $350 billion over 10 years?”

Justice Elena Kagan: “I mean, we have never suggested that we were going to say, look, this legislation was a brokered compromise and we are going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference. Instead, we look at the text that’s actually given us. For some people, we look only at the text. It should be easy for Justice Scalia’s clerks.”

Justice Anthony Kennedy: “When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was—one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me can be argued at least to be a more extreme exercise of judicial power than to strike—than striking the whole.”

Deputy Solicitor General Edwin Kneedler, arguing on behalf of the Obama Administration: “The notion that Congress would have intended the whole Act to fall if there couldn’t be a minimum coverage provision is refuted by the fact that there are many, many provisions of this Act already in effect without a minimum coverage provision. Two point—2 and-a-half million people under 26 have gotten insurance by one of the insurance requirements.”

Justice Stephen Breyer: “I would say stay out of politics. That’s for Congress; not us. But the, the question here is, you’ve read all these cases, or dozens, have you ever found a severability case where the Court ever said: Well, the heart of the thing is gone; and, therefore, we strike down these other provisions that have nothing to do with it which could stand on their feet independently and can be funded separately or don’t require money at all.”

Rendering of Paul Clement and Justices by Dana Verkouteran/AP Photo.

Ryan Lizza, an on-air contributor for CNN, was The New Yorker’s Washington correspondent from 2007-2017.